Holloway v. Barnes Grocer Co.

• Citation: 15 S.W.2d 917,223 Mo.App. 1026
• Parties: DORA HOLLOWAY, RESPONDENT, v. BARNES GROCER COMPANY, APPELLANT. [*]
• Decision Date: 30 March 1929
• Court: Missouri Court of Appeals

15 S.W.2d 917

223 Mo.App. 1026

DORA HOLLOWAY, RESPONDENT, v. BARNES GROCER COMPANY, APPELLANT. ^[*]

Court of Appeals of Missouri, Springfield

March 30, 1929

Appeal from the Circuit Court of Butler County.--Hon. Charles L Ferguson, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Henson & Woody for appellant.

(1) Respondent's instruction number one is erroneous. Fields v. Sevier, 184 Mo.App. 685; Pease v Cochran (S. D.), 5 A. L. R. 936; Atkinson v. Milk Co., 44 Mo.App. 135; O'Donnel v O'Neil, 130 Mo.App. 360; Phillips v. Foundry Co., 274 S.W. 936; Stafford v. Ryan, 276 S.W. 636; Anderson v. Sutton, 275 S.W. 32; Products Co. v. Supply Co., 273 S.W. 135; Seithel v. St. Louis Dairy Co., 300 S.W. 280. (2) Respondent's instruction number two is erroneous. Neas v. Railroad, 138 Mo.App. 4, 84, 504-505; Biglow v. St. Ry. Co., 48 Mo.App. 367; Ross v. Davis, 213 Mo.App. 209, 248 S.W. 611, 615; Boyd v. Railroad, 249 Mo. 110, 130-131, 302 Mo. 254, 257 S.W. 484, 4 S.W.2d 899; Warner v. Railroad, 178 Mo. 125, 134; Whitesides v. Railroad, 186 Mo.App. 618-621; Glick v. Railroad, 57 Mo.App. 97; Jacobson v. Beffa, 282 S.W. 161. (3) Respondent's instruction number four on the measure of damage is erroneous. Lebrecht v. U. Rys. Co., 237 S.W. 112; Colby v. Thompson, 207 S.W. 73; Perkins v. U. Rys. Co., 243 S.W. 224; Stahlberg v. Brandes, 229 S.W. 836. (4) The court erred in refusing appellant's instructions numbered D, E and F. Bonnarens v. Lead Belt Ry. Co., 273 S.W. 1043; Jacobson v. Beffa, 282 S.W. 161. (5) Appellant's demurrer interposed at the close of appellee's case, and also at the close of the whole case, should have been sustained. Denny v. City of Puxico, 4 S.W.2d 276; Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854.

Cope & Tedrick for respondent.

(1) There is ample testimony in the record to authorize the giving of plaintiff's instruction number one, and the giving of defendant's instruction "A" was error. The fact that an erroneous instruction given at defendant's request is inconsistent and conflicting with correct instructions given at plaintiff's request, is not ground for reversal where defendant is the appealing party. Baker v. Kansas City, Ft. Scott & M. R. R. Co., 122 Mo. 533, 26 S.W. 20; Harrington et al. v. City of Sedalia, 98 Mo. 583, 12 S.W. 342. (2) Appellant's objection to plaintiff's instruction number two is well taken, respondent having inadvertently omitted the clause "but that he failed so to do and as a direct result thereof," however we do not think the jury was misled by the omission and that it does not constitute reversible error. Incomplete or defective instructions resulting from omissions may be cured by others. Meyer v. Southern Electric Ry. Co., 135 Mo. 512, 36 S.W. 367; Merchant's Ins. Co. v. Houck, 83 Mo. 21; Budd v. Hoffheimer, 52 Mo. 297; Baker v. Independence, 106 Mo.App. 507; Kingman & Co. v. Shawley, 61 Mo.App. 54; Voegeli v. Pickel, etc., Co., 49 Mo.App. 643. (3) Defendant's demurrers offered at the close of plaintiff's case and again at the close of the whole case, were properly overruled, for in considering same and the evidence must be received in the light most favorable to plaintiff, admitting as true every fact and inference that may be deduced therefrom. Flach v. Ball, 240 S.W. 465, 209 Mo.App. 389; Planters Nut & Chocolate Co. v. Douglas Candy Co., 240 S.W. 473; Tyner v. Moore, 250 S.W. 920; Hestand v. Hamlin, 262 S.W. 396; Evans v. General Explosives Co., 239 S.W. 487, 293 Mo. 364; Ross v. Hoffman, 269 S.W. 679; Skirvin v. McKamey, 237 S.W. 858.

BAILEY, J. Cox, P. J., concurs. Smith, J., not sitting.

OPINION

BAILEY, J.

Plaintiff sued defendant for damages for personal injuries sustained by her on the 3rd day of February, 1927. The injuries complained of resulted from plaintiff being thrown from a horse, which she was riding, on a public highway. The horse became frightened at a motor truck of defendant's being driven at the time by one of defendant's employees. A trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $ 2500 and defendant appeals.

A demurrer to the evidence offered at the close of the whole case was overruled which action of the court is assigned as error. Considering the evidence most favorable to plaintiff, together with all reasonable inferences therefrom, and disregarding the evidence of defendant in conflict therewith, we have a state of facts about as follows: Plaintiff was a married woman and a school teacher. On the 3rd of February, 1927, she had been in Poplar Bluff and was returning home riding her horse, with her little daughter on the horse behind her. She was traveling East on U.S. Highway 60, going toward her home. At a place about three-quarters of a mile East of Poplar Bluff, the highway crosses a slough spanned by a bridge. Plaintiff testified that, "When we were about thirty or forty feet from the east end of the bridge across Palmer Slough, I heard a noise and looked up and saw a truck with a tarpaulin over it. We proceeded but the horse acted as if he was frightened. When I came about even with the end of the truck, the tarpaulin flapped on both sides in the horse's face, and he whirled around and started back. When I was about thirty or forty feet from the end of the bridge the truck was up the road about the curve at the Frisco crossing. The tarpaulin was flapping when I first saw it. After I left the bridge I traveled about seventy feet before I came to the truck, and the horse turned around. It is three-tenths of a mile from the bridge to the Frisco crossing. I rode this horse to school on bad days and at different times, and my little girl nearly always rode behind me. We have owned this horse five or six years, she is twelve or thirteen years old. She has never attempted to throw any one before. When riding this horse before this time I would pass cars on the road and they would pass me. She never at any time before this indicated that she was scary. We were so close to the truck when the horse turned around that I could almost put my hand on the hood. The truck was on its side, but nearer the center. From the bridge you can see all of the road to the Frisco crossing. I always watch what I am doing when riding horseback. Was riding astride so I would be safe. The terrible rattling is what attracted my attention to the truck. The truck was up where the road curves when my horse first showed signs of frightening. The truck did not stop when the horse began to frighten. My horse was going about four miles per hour. I intended to go past, but the horse swirled and went back the other way. When I fell off the horse my head hit the concrete, injuring it over the left eye and injuring the pupil of that eye."

On cross-examination she testified as follows:

"The accident happened late in the afternoon, would say between four and five o'clock. Had been in Poplar Bluff since about one o'clock. During that time my horse was hitched on the east side between Mr. Boyt's store and the filling station. It is about half mile from where the horse was hitched to where I got hurt. Rode in a fast walk about four miles per hour. When I was about forty feet west of the end of the bridge I heard a terrifying noise where the truck was coming down the road. Did not tell Mr. Gilmore that the chains on the truck frightened my horse, but that the tarpaulin did. Do not know what kind of truck it was. When I first saw the truck it was about three-tenths of a mile from me, but I may have heard it before that time. We have had automobiles and I have driven them myself. I could not tell whether the truck had a muffler on it or not. The truck made the turbulent noise. I do not know whether it had rubber tires. I think solid tires make more noise than the pneumatic. It was not raining the day of the accident. The tarpaulin was over the cab of the truck, and was flapping and waving."

The daughter of plaintiff, Emma Holloway, who was riding on the horse with her mother, testified that she was twelve years old; that the truck had a big tarpaulin on top of it and it was flapping and making lots of noise; that "after the horse got across the bridge he kept his ears pricked up and jumped and twisted around until the truck got up to that place. I had ridden that horse lots of times before this, had ridden her to school along this highway and she had never attempted to run away or to throw me off." On cross-examination she testified that "I estimate that the truck was going about thirty miles an hour, and we were going about four. We were just past the opening there when the horse turned and ran back, nearly where they have it marked seventy-two feet from the bridge. We were clear around the curve and the truck was a little over 500 feet from us when the horse had already began to scare. He was scaring when he came off the bridge and continued to scare for seventy-two feet where he turned, and the truck kept coming closer. I was riding behind my mother, but I looked around."

There was evidence on the part of defendant that the horse had scared at a truck loaded with stave blocks just as plaintiff was reaching the bridge; that the tarpaulin was securely fastened down in four places and put on and maintained in the customary manner; that the truck was being operated at a lawful rate of speed on the right hand side of the roadway and that the driver did all in his power to avoid injuring plaintiff.

It is undisputed that the driver of defendant's truck was at the time engaged in his master's business and that under the law he was required to drive the truck "in a careful and prudent manner," and to "exercise the highest degree of care and at a rate of speed so as not to endanger the property of another or the life or limb of any person." [Sec....